Opinion
2014-02-19
Ashley BURGETT, respondent, v. Thomas SCHAFFHAUSER, appellant.
Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for appellant. Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for respondent.
Richard T. Lau, Jericho, N.Y. (Linda Meisler of counsel), for appellant. Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated July 25, 2013, which denied his motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is affirmed, with costs.
The defendant met his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197;Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendant submitted, inter alia, competent medical evidence establishing, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine did not constitute serious injuries under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) ( see Arias v. County of Suffolk, 107 A.D.3d 652, 653, 967 N.Y.S.2d 98;Staff v. Yshua, 59 A.D.3d 614, 874 N.Y.S.2d 180). In opposition, however, the plaintiff submitted evidence raising a triable issue of fact as to whether she sustained serious injuries to the cervical and lumbar regions of her spine ( see Perl v. Meher, 18 N.Y.3d 208, 218–219, 936 N.Y.S.2d 655, 960 N.E.2d 424).
Accordingly, the defendant's motion for summary judgment dismissing the complaint was properly denied. DILLON, J.P., BALKIN, LEVENTHAL and CHAMBERS, JJ., concur.